An under-reported aspect of the new NI protocol. Article 10 and Annex 5 apply the full panoply of EU State aid rules (the law; its application by the Commission and ECJ; enforceability in the UK courts) to *the United Kingdom* in perpetuity.
The only condition is that the measure at issue is one that affects trade in goods between NI and the EU27.
This is a low threshold. A UK-wide tax measure applying to NI as to the rest of the UK (reduced VAT for widgets; a corporation tax break for widget-makers) would be above that threshold and caught by EU State aid rules.
A grant to a widget-making business headquartered in Birmingham with any branch or sales activity in NI would also be likely to be caught.
“Caught” here means “quite likely to be invalid unless within the terms of an EU exemption or approved in advance by the Commission.”
Even if the Commission chooses not to act, these rules will remain enforceable in national courts. Whatever UK law may otherwise say: see clause 5 of the Withdrawal Agreement Bill.
So the UK has, under Johnson’s deal, “escaped” EU State aid rules only in the sense in which a prisoner who has got most of his body out of his cell window but still has his foot chained to the floor can be said to have “escaped”.
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1. It is incorrect to say that mobility arrangements are an "EU competence". Plenty of EU member states have mobility agreements with third countries.
What is true, and is perhaps what de Fossard is (inaccurately) trying to get at, is that there is debate within the EU as to how mobility agreements with the UK should be handled, with the Commission trying to assert its competence (as it tends to do).
To show why it’s poor, all I need to do is to refer him to a few paragraphs of the judgment setting out what was the legal issue that @UKSupremeCourt had to resolve.
To summarise the summary: legislation requires an environmental impact assessment (EIA); the local authority decided that the EIA didn’t need to include an assessment of the impact on the climate of oil produced by the site; was it lawful for it to take that view?
The 🐘 in the room that it fails to confront (though sometimes hints at): that companies operate in a world where the public expects them to uphold standards in conduct and recruitment and they will suffer *commercially* if they don’t.
An example is the hand-wringing discussion of the growth of ESG funds that simply fails to explain why they’ve grown (the obvious answer being the inconvenient one that they respond to public demand).
Others - see eg - have dealt with the “no big negative impact” claim here (and it isn’t “assume”: it’s looking at the evidence and applying standard analysis). But a couple of points on “and so little use has been made of the opportunities [Brexit] offers”
The current government has taken - in rafts of legislation since 2019 - enormous powers to change EU regulatory rules. That was so even before the Retained EU Law Act (REULA) gave them even greater powers to do so, largely without needing to involve Parliament.
Have they used them? Despite the huge political pressure on them, and every incentive on individual ministers, to find “Brexit opportunities”, hardly at all.
The concerns set out by @GeorgeMonbiot here have powerful and authoritative backing from the 2022 @CMAgovUK report into children’s care. Its conclusion:
Since then, the inability of the children in care system to deal adequately with children in care with complex needs has led to an explosion in “Deprivation of Liberty Orders” (DOLs) - so many that there is now a special court to deal with them. judiciary.uk/launch-of-nati…
Some brief comments on the European Commission’s proposal to get a mandate to negotiate a youth mobility agreement with the UK. ec.europa.eu/commission/pre…
1. The EU is not there yet. The mandate has to be agreed by the Council of Ministers: probably by qualified majority. And it isn’t clear whether a final agreement would need to be ratified by all Member States as well as the EU itself.
2. If the EU does agree a mandate, that is likely to slam the door on any attempt by the UK to negotiate youth mobility agreements with individual Member States (because they have a duty of sincere cooperation). So any agreement would have to cover (say) 🇧🇬 as well as (say) 🇫🇷.